McLeod v. Palardy, (1980) 4 Man.R.(2d) 218 (QB)

• Judge: Kroft, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: June 20, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 4 Man.R.(2d) 218 (QB)

McLeod v. Palardy (1980), 4 Man.R.(2d) 218 (QB)

MLB headnote and full text

McLeod v. Palardy

Indexed As: McLeod v. Palardy

Manitoba Court of Queen's Bench

Kroft, J.

June 20, 1980.

Summary:

This case arose out of the plaintiff's action against the defendant for damages arising out of a motor vehicle accident. The plaintiff ran across a city street at night several yards from an intersection into the path of the defendant's automobile and was severely injured. She was left mentally and physically handicapped.

The Manitoba Court of Queen's Bench allowed the plaintiff's action in part and found the plaintiff and defendant negligent and equally at fault. The Court of Queen's Bench awarded $144,515.75 damages, being one half of her assessed damages.

Damage Awards - Topic 102

Personal injuries and death - Head injuries - Brain damage - Multiple injuries including cerebral contusion, fractured pelvis, ruptured bladder, vaginal laceration and fracture of tibia - Septic arthritis of hip - Resulting residual right hemiplegia and dysphasia - Destruction of hip joint - Thirty-one year old Indian mother of five dependent children, who was separated from her husband - Moderate education with no job training or job experience, except as waitress - Rehabilitation to a function level for an ordinary daily routine of self and home care, but severe mental and physical impairment - The Manitoba Court of Queen's Bench assessed $50,000.00 general damages for non-pecuniary damages plus $237,948.11 general damages for pecuniary damages, including cost of past and future care, loss of past and future earnings and a fee for management of the fund - See paragraphs 28 to 108.

Damages - Topic 1543

General damages for personal injuries - Pain, suffering, loss of amenities and other non-pecuniary damages - The Manitoba Court of Queen's Bench in awarding $50,000.00 general damages for personal injuries for non-pecuniary damages to a woman who was left severely mentally and physically crippled discussed the limits of non-pecuniary damages as discussed by the Supreme Court of Canada in Teno v. Arnold, Thornton v. Board of School Trustees and Andrews v. Grand and Toy (Alberta) Limited - See paragraphs 99 to 106.

Damages - Topic 1546

General damages for personal injuries - Discount or capitalization rate and present value of future payments - The Manitoba Court of Queen's Bench applied a 4% discount rate in assessing general damages for the cost of future care and loss of future income - See paragraphs 80 to 82.

Damages - Topic 1548

General damages for personal injuries - Management of fund or fee - The Manitoba Court of Queen's Bench assessed a $25,000.00 management fee for the management of an award of general damages for personal injuries in the amount of $262,948.11, excluding the management fee - See paragraphs 97 to 98.

Damages - Topic 1550

General damages for personal injuries - Prospective loss of wages or earnings - A 31 year old Indian mother of five dependent children, who was separated from her husband, was severely injured and left with severe mental and physical handicaps - She had a moderate education with no job training or job experience, except as a waitress and in bead work - The Manitoba Court of Queen's Bench awarded the woman substantial damages for loss of income, notwithstanding that there was little evidence on which to base an award - See paragraphs 73 to 79 and 89 to 93.

Damages - Topic 1565

General damages for personal injuries - Deductions or payments to be considered - Income tax - The Manitoba Court of Queen's Bench in assessing general damages for personal injuries held that the impact of taxation should be disregarded - See paragraphs 95 to 96.

Damages - Topic 1567

General damages for personal injuries - Future care and treatment - In assessing general damages for cost of future care of a woman who was injured and left mentally and physically crippled the Manitoba Court of Queen's Bench included the cost of a house for her, because it was the cheapest way to care for her - See paragraphs 83 to 88.

Damages - Topic 1700

Deductions for payments or assistance by third parties - Voluntary - From members of claimant's family - General - A 31 year old Indian mother of five dependent children, who was separated from her husband, was left severely mentally and physically crippled after an accident - Her sister and her children provided considerable assistance to her after the accident - The Manitoba Court of Queen's Bench in assessing general damages for personal injuries included $7,500.00 for the value of the children's services and $3,500.00 for the value of the sister's services - See paragraphs 59 to 60.

Damages - Topic 1765

Deductions for payments or assistance by third parties - By statute or government - Social welfare - Home care - After a woman was severely injured in an accident she received home care provided by a government social assistance program - The Manitoba Court of Queen's Bench in assessing general damages for personal injuries included an amount for the value of the home care services - See paragraphs 68 to 71.

Torts - Topic 355

Negligence - Motor vehicle - Pedestrians - Street crossings - Non-intersection - The Manitoba Court of Queen's Bench held the plaintiff woman negligent and 50% at fault where she ran across the street at night into the path of an oncoming car and was severely injured - See paragraphs 4 to 27.

Torts - Topic 550

Negligence - Motor vehicle - Burden of proof on owner or operator of motor vehicle - Highway Traffic Act, R.S.M. 1970, c. H-60, s. 144(1) - The defendant driver struck the plaintiff pedestrian, who ran across the street at night several yards from an intersection into his path - The Manitoba Court of Queen's Bench held both the plaintiff and the defendant equally at fault and held that the defendant driver failed to satisfy the onus on him under s. 144(1) of the Highway Traffic Act of proving that the accident was not partially his fault - See paragraphs 4 to 27.

Cases Noticed:

Hartman v. Fisette (1976), 66 D.L.R. (3d) 518, appld. [para. 23].

Mikuletic v. Harvie (1979), 1 Man.R.(2d) 156, appld. [para. 23].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452, appld. [paras. 53, 99].

Thornton v. School District No. 57 (Prince George), [1978] 2 S.C.R. 267; 19 N.R. 552; [1978] 1 W.W.R. 607; 83 D.L.R.(3d) 480, appld. [paras. 53, 99].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R. (3d) 609, appld. [paras. 53, 99].

West v. Shephard, [1964] A.C. 326, appld. [para. 55].

Vana v. Tosta, 66 D.L.R.(2d) 97, appld. [para. 64].

Urbanski v. Patel et al.; Firman et al. v. Patel et al. (1978), Legal Medical Quarterly, Vol. 2, No. 1, 54, appld. [para. 65].

Donnelly v. Joyce, [1974] Q.B. 454, appld. [para. 65].

Parry v. Cleaver, [1970] A.C. 1, appld. [para. 69].

Canadian Pacific Ltd. v. Gill, [1973] S.C.R. 654, appld. [para. 69].

Guy v. Trizec Equities Ltd. (1979), 27 N.R. 301 (S.C.C.), appld. [para. 69].

Boarelli v. Flannigan (1973), 36 D.L.R.(3d) 4, appld. [para. 70].

Fenn v. Peterborough, 9 C.C.L.T. 1, appld. [para. 74].

Conklin v. Smith, [1978] 2 S.C.R. 1107; 22 N.R. 140, appld. [para. 75].

Lan v. Wu et al., [1979] 2 W.W.R. 122, consd. [para. 82].

Statutes Noticed:

Highway Traffic Act, R.S.M. 1970, c. H-60, sect. 144(1) [para. 21].

Tortfeasors and Contributory Negligence Act, R.S.M. 1970, c. T-90, sect. 1 [para. 25].

Counsel:

D.C.H. McCaffrey, Q.C., S.G. Sigurdson and L.P. Allen, for the plaintiff;

W.S. Saranchuk, for the defendant.

This case was heard at Winnipeg, Manitoba, before KROFT, J., of the Manitoba Court of Queen's Bench, who delivered the following judgment on June 20, 1980: